1. The respondents in this petition attached the whole family property of the father and the son before judgment. A decree was obtained and the property was subsequently brought to sale and the purchase money deposited in Court. The father became insolvent and the father's share of the proceeds was handed over to the Official Receiver. Because the son's share had already been attached the father had no power over the son's share of the property and so the Official Receiver was allowed to take only the father's share of the proceeds. The petitioner, who obtained a decree against the father on a promissory note debt, has filed a petition for rateable distribution. The Subordinate Judge of Dindigul held that the petitioner could not be granted this relief.
2. The argument of the learned Advocate for the petitioner is that as the son is liable for his father's debt, it is not necessary for him to add the son as a party to execution proceedings against the family property, that his decree against the father must be considered to be a decree against the son also, and that he can therefore execute his decree against the son's share of the family property. Section 73 only applies to the execution of decrees against the same judgment-debtor; but I have been referred to a Full Bench decision in Ramakrishna Chettiar v. Viswanatha Chettiar : AIR1936Mad40 to the effect that the words same judgment-debtor' must not be construed too strictly. There, one creditor obtained a decree against the father and then after his death added his two sons as his legal representatives, and a second creditor obtained a decree against the sons of the father after the father's death. It was held that in fact the decrees were against the estate of the deceased father and that it made no difference that in one case the name of the father was given and in the other the names of the sons. In the case under consideration the respondent has a decree against the son as well as the father, whereas the petitioner has a decree against the father only. In his execution petition, the petitioner did not even make the son a party on the ground that he was liable for his father's debts, and we do not even know that the decree was obtained against the father for a debt binding on the son. In these circumstances I am not satisfied that the decree of the petitioner can be considered to be a decree against the son also, which alone would entitle him to rateable distribution.
3. The petition is therefore dismissed with costs.